Scottish Court of Session Decisions

Subject_1 LOCUS POENITENTIAE.
Subject_2 SECT. V.

Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pænitentiæ after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease

Campbell
v.
Douglas

Date: 12 January 1676
Case No. No 63.

Locus pæni tentiæ competent in a bargain agreed to be reduced into writ, before the writ was subscribed.

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Robert Campbell and Robert Douglas having bought the rests of debts due to a soap-work at Leith, the assignation was taken in Robert Douglas's name, and he granted back-bond, ‘declaring the half to belong to Robert Campbell;’ but thereafter they made a bargain, “That Robert Campbell should have 500 merks of free profit to quit his interest;” but within a few days after, Robert Douglas resiled from the bargain, whereupon Campbell pursues him before the Bailies of Edinburgh; in which process Douglas deponed, That there was a bargain as is libelled, but that it was to be redacted in writ, and that before the contract was perfected he did resile. The Bailies having found, That this part of the oath of redacting the bargain into writ, was no competent quality, but an exception, Douglas raised reduction upon iniquity; and as it was then represented to the Lords, That such a bargain needed no writ, seeing the assignation was in Douglas's name only, and Campbell, upon payment of the money, was only to give back the back-bond, and that Douglas was to give precepts for a part of the money, which was not Campbell's fault that it was not done; therefore the Lords remitted the cause, and the Bailies decerned. Douglas now suspends, and repeats the reason of iniquity, and alleges, That albeit a bargain, by its nature, require no writ, yet if the parties expressly commune and agree to perfect the bargain by writ, till the writ be subscribed, est locus pænitentiæ, and either party may resile; and this being a part of the bargain, was a most proper and intrinsic quality, and the supender ought not to have been put to prove it; but his oath being the only mean of probation, did sufficiently pove it.

The Lords having considered the oath, as it is repeated in the Bailies' decreet now produced, bearing, ‘That the bargain should have been perfected in writ,’ they found, That though writ is not necessary to perfect an agreement; yet if parties expressly commune and agree to perfect it in writ, there is place for either party to resile till the writ be subscribed; and that this being a part of the bargain, was intrinsic and competent by Douglas's qualified oath: But in respect the oath did only bear, “That the bargain should have been perfected in writ,” which might have been Douglas's conjecture, They ordained Douglas to be re-examined, whether it was expressly communed and agreed by the parties that this bargain should be perfected in writ. See Qualified Oath.

Fol. Dic. v. 1. p. 564. Stair, v. 2. p. 396.